What to do if the bank seized the apartment for non-payment of the loan?

Home/Mortgage repayment/Mortgage account seizure

The presence of unfulfilled obligations can become a reason for the application of sanctions. If a court decision is made against the defaulter and enforcement proceedings are initiated, bailiffs have the right to seize the citizen’s property and money. Incoming funds may begin to be forcibly transferred to pay off the debt. However, a person who bought an apartment on credit, in addition to the standard ones, has a mortgage account. Seizing a mortgage account deprives a citizen of the opportunity to make timely payments. If such a situation arises, it is necessary to act immediately. A number of procedures will need to be followed to remove restrictions from your mortgage account and continue making loan payments.

What is a mortgage account?

A mortgage account is practically no different from classic bank accounts for individuals. It is opened at the time of issuing a loan to purchase a home. Funds are received here monthly to close loan obligations. The amounts in the account belong to the citizen.

Attention! If you have any questions, you can chat for free with a lawyer at the bottom of the screen or call Moscow; Saint Petersburg; Free call for all of Russia.

Attention

If enforcement proceedings are initiated, seizure of property and other property is used as one of the measures. Often restrictions are placed on mortgage accounts. As a result, the bank does not receive the money that the citizen transferred. All payments are immediately sent to close the debt to the person in whose favor the judgment was made. Similar schemes operate in all financial institutions.

What if the property is not owned?

Can bailiffs seize an apartment for debts when it does not belong to the borrower?
No. If the object is not owned by the debtor, no one has the right to seize property. The obligations do not apply to third parties. However, it is possible to seize the property located in this premises and belonging to the borrower. Read Writing off debts on personal loans: how to legally write off accounts payable

In what cases can a mortgage account be seized?

Article 81 of Federal Law No. 229 of October 2, 2007 “On Enforcement Proceedings” states that bailiffs can seize funds in a bank account. If it is open to a mortgage, this does not deprive the bailiff of the opportunity to carry out the procedure. Information about the nature of the account is not requested. Banks provide performers only with information about the availability of funds. To claim the money, the executor issues a decree to seize the mortgage account. The bank is obliged to immediately comply with the order of the bailiffs and apply the restriction. As a result, payments will no longer be made to the lender.

For your information

Seizure of a mortgage account is used if enforcement proceedings are being carried out against a person. It does not matter for what reasons the corresponding decision was made.

Can bailiffs take away an apartment with a mortgage if the debt is to another bank?

When it comes to collecting any type of debt that has arisen, then, on the basis of Part 1 of Article 80 of the Federal Law “On Enforcement Proceedings,” bailiffs can seize the debtor’s property in order to ensure the fulfillment of the requirements reflected in the executive document. Along with this, the official is authorized to dispense with the application of priority rules according to which foreclosure is carried out.

In reality, legislative innovations open up additional powers for performers. Now the bailiff can seize the only home if the debtor has debts. In addition, practice shows that since the beginning of this year the court has been striving to actively apply legislative innovations.

In this connection, the bank receives some guarantees to secure claims, and the debtor has reason to worry about the further disposal of the property. Since the arrest applied by the bailiff on real estate limits the borrower’s right to dispose of housing at his own discretion, he cannot carry out property transactions.

But, do not forget that if the borrower did not evade, did not come up with excuses and personally contacted the bank in order to resolve the current situation, it is quite possible to resolve all issues out of court. After all, this is beneficial for both the borrower and the lender. The bailiff is not even able to seize mortgaged property without a court order.

We invite you to read: Tax penalties in 2021: calculation formula - penalty calculator

All his actions are strictly regulated, and he is endowed with not only powers. There are situations in which the executive body is powerless and does not have the right to take certain actions, including with mortgaged property. Seizure of mortgaged housing by a bailiff can become an obstacle for a negligent defaulter who wants to sell it or donate it to a third party, without notifying the bank.

It should be recalled that, according to the law, the borrower has the right to appeal the arrest in court or another body that issued a decision to arrest the apartment for which the mortgage was taken out by this mortgage holder, as well as to petition for a change in the strict interim measure to a more accessible and acceptable one.

The right to foreclose on real estate secured by a mortgage belongs to the creditor bank in accordance with Article 50 of Law No. 306-FZ. However, starting the process of arresting and selling an apartment for early repayment of debt to a banking organization is possible only under the conditions specified by this law:

• the borrower does not fulfill or does not properly fulfill its payment obligations (Article 50, paragraph 1);
• the borrower concealed at the time of registration of the agreement the existence of rights of third parties to the mortgaged (collateralized) apartment (Article 12);
• the borrower does not properly ensure the condition of the mortgaged apartment (Article 35);
• the borrower donated, sold, exchanged or made a collateral (mortgage) apartment in the form of a property contribution without an agreement with the creditor bank (Article 39);
• The apartment, which is encumbered by a mortgage, is forcibly seized by government agencies with the provision of other real estate (it becomes the subject of collateral) or financial compensation (Article 41).

Also, Article 46 of the Law “On Mortgage” establishes the right of priority in repaying debts to the lender if the borrower has reissued the mortgage to another banking organization.

In addition to the conditions that allow a banking organization to insist on the sale of a mortgaged apartment, the provisions of the Law “On Mortgage” establish a number of conditions under which the creditor bank cannot demand immediate repayment of the debt, incl. sale of mortgage real estate. They are listed in paragraph 3 of Article 54.1:

• the borrower's debt on payments (the amount of the unfulfilled obligation) is less than 5% of the cost of the apartment (the subject of the mortgage);
• the borrower's payment delays have not exceeded 3 months.

However, the right to demand the sale of the mortgaged apartment arises from the mortgage bank if the deadlines for making payments were violated more than three times during the year (Article 54.1, clause 5). Even if four or more cases of delay were insignificant - only a few days.

According to the terms of paragraph 1 of Article 446 of the Civil Code of the Russian Federation, recovery against the debtor’s residential premises is inapplicable if it is the only one suitable for his residence. But this condition does not apply to a mortgaged apartment, since this property has a known encumbrance, since it is the subject of a loan secured by the borrower to a banking organization.

Those. If there are repeated (more than three) violations of payment terms, the bank has the right to initiate procedures for the seizure and sale of the mortgaged apartment, even if this is the borrower’s only home.

The right of ownership of collateral property under a mortgage does not extend to minors, since they cannot be responsible for a long-term loan and cannot be the owners of such an apartment or house.

Guardianship authorities do not have the right to influence the situation with the housing of minors, the owner of which is the borrower of a mortgage loan and, for some reason, does not make timely payments to the bank. Those. at the claim of the creditor bank, the court will take his side, even if the mortgaged housing is the only one for minors.

But, since the apartment is already pledged, the mortgage bank has a priority right to it as an object of security for the mortgage agreement. The mortgage lender applies to the arbitration court and challenges the decision issued at the request of a third party to seize the apartment in accordance with Law No. 229-FZ “On Enforcement Proceedings”. Those. the interests of third parties in relation to mortgaged housing will most likely not be taken into account by the court.

A mortgage agreement is usually concluded for a multi-year term. When planning loan payments at the time of applying for a mortgage loan, the borrower cannot take into account future situations (job loss, illness, reduction in income, etc.) that could interfere with making payments on schedule. There is no point in hoping for a miracle in the mortgage issue; you should look for a solution to the difficult situation in negotiations with a banking organization. You can notify your mortgage lender in writing that you need to:

• debt restructuring. This measure will lengthen the terms of mortgage payments, but reduce the amount of contributions;
• "credit holidays" By agreement with the bank, mortgage payments and interest are frozen for a contractual period;
• revision of the payment schedule. This will allow you to make payments quarterly rather than monthly.

We suggest you read: What you need to remodel your apartment

It is important to wait for the written approval of the creditor bank and, possibly, draw up an additional agreement to the mortgage agreement. Only then is it possible to make payments according to a different schedule acceptable to the borrower and agreed upon with the bank.

An acceptable way out of the “mortgage” situation for the borrower is a subsequent mortgage - taking out a new loan from another bank with more lenient conditions, the collateral of which is the same real estate. The loaned funds will allow you to close debts to the previous banking organization, thereby avoiding seizure and sale of your home. This solution is available if the first mortgage agreement does not prohibit such transactions.

It is important for mortgage borrowers who find themselves in a difficult financial situation to understand that most banking organizations providing mortgage services are not interested in long-term litigation with mortgaged real estate. The bank does not need clients' apartments - money previously lent to the borrower and interest on it is much preferable.

Therefore, solutions to mortgage difficulties at an early stage of the situation are always available and should be taken advantage of before the problem becomes intractable. Experienced real estate lawyers and realtors can provide real assistance to mortgage borrowers - contact them.

The apartment was purchased during marriage and is under a mortgage. I am on maternity leave, my financial situation has worsened. The husband began taking out bank loans to pay off the mortgage. As a result of delays, banks will soon sue. I work from home, but this salary is only enough to provide for a child. My husband pays his entire salary for the mortgage. The question is - what will happen to the apartment?

If you pay your mortgage regularly, no other bank will be able to foreclose on the apartment.

According to Art. 446 of the Civil Procedure Code of the Russian Federation, recovery under executive documents cannot be applied to residential premises (or part thereof) belonging to the debtor by right of ownership, if for the citizen-debtor and members of his family living together it is the only premises suitable for permanent residence (exception – the specified real estate is the subject of a mortgage, in this case it may be foreclosed on in accordance with the legislation on mortgages).

I would also like to draw your attention to the fact that recovery under executive documents also cannot be applied to items of ordinary home furnishings and household items, personal items (clothes, shoes and others), with the exception of jewelry and other luxury items, to property necessary for professional occupations of a citizen-debtor, with the exception of items the cost of which exceeds one hundred minimum wages established by federal law.

Thus, bailiffs, in order to enforce a court decision, can make an inventory of your property, because Your spouse is registered in this apartment, and registration at the place of residence is the place of permanent residence, regardless of the ownership of the residential premises. And the place of residence requires the presence of personal belongings in the premises.

Do bailiffs have the right to describe property? /problem/5420

Currently there is no way to repay loans, collectors are threatening. What to do? /problem/10506

It is not possible to repay the loan according to the schedule. What to do? /problem/9943

Reasons for seizure of a mortgage account by bailiffs

The main reason for seizing a mortgage account is the initiation of enforcement proceedings. Typically, debts for:

• alimony;
• other loans;
• service agreements;
• installment plan agreements.

Typically, bailiffs will cooperate if a person makes attempts to fulfill obligations, makes partial payments, or offers other options to get out of the current situation. When a person ignores the demands made against him, bailiffs take measures to force the recovery of the amount.

Consequences of mortgage account seizure

Attention:
If the account is frozen, the person will no longer be able to make payments on the mortgage. All funds transferred to fulfill obligations will be written off and used to pay off the debt under enforcement proceedings. This situation will continue until the arrest is lifted.

Depositing funds through the cash desk of a financial institution will not correct the current situation. Having received the amount from the client to repay the home loan, the operator will deposit the money into the seized mortgage account. As soon as the funds get there, they will be written off immediately. To rectify the situation, it is necessary to pay off the debt or take measures to lift the arrest.

What is an apartment?

An apartment (based on the position of the modern legislator) is a certain type of living space, which consists of several rooms and has an external exit.

An apartment in a residential building can be owned by the citizens living in it, or owned by the municipality, or owned by other persons.

In any case, as provided for by the current constitutional and civil legislation, a citizen must keep his property in a suitable condition.

At the same time, eviction from an apartment (for example, for non-payment of utility bills) is not possible if the citizen does not have other housing.

However, this does not prevent the specified utility services from seizing housing by registering the debtor citizen, for example, in ... a “communal apartment.”

Will the debt increase if the mortgage account is seized?

You should not expect that the application of sanctions by bailiffs will freeze your mortgage debt. The Bank will continue to act in accordance with the provisions of the agreement. The document states that the person is required to make monthly payments in accordance with the loan schedule. The occurrence of delay entails the imposition of penalties and fines. Additionally, debts will begin to form.

If a person wants to try to correct the situation, he can contact the bank and ask for a deferment. However, the company is not obligated to comply. She will act in accordance with her own interests. Typically, a request for an installment plan will be granted if the borrower provides evidence that his or her financial situation will soon improve and the person will be able to pay off the debts and begin repaying the mortgage according to the established schedule.

What actions to take to prevent eviction

It is the borrower’s responsibility to avoid delays on any loan product, including a mortgage. If situations arise related to a decrease in official monthly income, it is recommended not to bring the matter to litigation, but to use one of the legal ways to support clients who find themselves in difficult financial situations:

Recommended article: Buying an apartment through assignment of a mortgage

1. Debt restructuring. Suitable for those who are ready to fulfill financial obligations, but on a smaller scale. This method is a kind of installment plan. The loan term increases, and the amount of monthly payments decreases.
2. Credit holidays. An option for those who suddenly find themselves in a difficult situation. According to the program, the bank provides deferred payment for up to 6 months (). Then payments are resumed in the same amount. In other words, the payment schedule is shifted to six months and payments on the body of the debt are suspended for a specified period of time.
3. State programs. For example, foreign currency mortgage. If the exchange rate of the national currency (ruble) collapses, borrowers have the right to debt relief.
4. Forgiveness (write-off) of part of the debt, interest, full/partial cancellation of fines. Such situations are extremely rare. To do this, the client will have to collect a serious evidence base of decreased solvency. You may need to seek the services of qualified lawyers.

To avoid being evicted for mortgage debt, you must notify the bank that temporary financial difficulties have arisen and take advantage of a suitable customer support program. You also need to collect a package of documents. Depending on the factors that influenced the decrease in income, it may include:

• work book with a notice of dismissal;
• certificate of incapacity for work;
• death certificate;
• a copy of the court verdict on choosing a preventive measure in the form of detention;
• order from work about job reduction, etc.

These papers may also be needed in court if the problem cannot be resolved peacefully.

How to pay off your mortgage?

It is still possible to bypass the restrictions of freezing your mortgage account. To do this, it is necessary to exclude the deposit of funds into the borrower’s account from the repayment scheme. To make mortgage payments, a citizen can use the following methods:

1. Transfer money without opening an account. In this case, the funds will go directly to the lender. You can complete the procedure by coordinating the actions with the bank.
2. Contact a relative or friend and ask to open an account with a financial institution. You will then need to prepare an application for an excise-free write-off to pay off the mortgage.

First of all, it is necessary to try to normalize the financial situation and resolve the issue with the bailiffs. Resolution of the Plenum of the Supreme Court of the Russian Federation No. 50 dated November 17, 2015 states that a person has the right to prepare an application for a deferment or installment plan for the execution of a court order. If the requirements are satisfied, the seizure will be removed from the mortgage account. As a result, the defaulter will be able to make payments according to the standard scheme. Compulsory collection measures are not applied.

To use the method, you must contact the bailiff in charge of enforcement proceedings. The procedure must be completed within 5 days from the date of seizure. The application must be supplemented with a certificate confirming the financial situation of the debtor. This could be a certificate of income, a document demonstrating the amount of monthly payments under a mortgage agreement, papers confirming family expenses, the number of dependents, etc.

Attention

If you can’t arrange an installment plan, you should try to negotiate with the bank. To do this, you will need to contact a financial institution and ask for a mortgage holiday, change the deadline for depositing funds, or extend the loan with a reduction in the monthly installment. As a result, the person will be able to maintain a positive credit history, establish themselves as a responsible borrower and reduce the burden on the budget. As a result, the person will have funds to pay off the obligations due to which the mortgage account was frozen.

How does the foreclosure procedure work on mortgaged housing?

Eviction for mortgage debt is preceded by an attempt to resolve the issue amicably. To do this, banks offer clients one of the options for resolving the dispute out of court. Relaxations include credit holidays, debt restructuring, participation in programs with government support, etc.

Recommended article: How not to lose your home with a mortgage in a civil marriage

If it is not possible to find a solution that satisfies all participants in the process, the bank prepares and submits documents to the court. The algorithm is as follows:

1. Consideration of a claim in court.
2. If the decision is positive in favor of the lender, open tenders for the mortgage are announced.
3. If the apartment cannot be sold at public auction, it is placed on the bank’s balance sheet. Subsequently, the financial institution can keep it for itself or sell it at its own discretion ().

Also, the obligation to pay the balance of the mortgage debt rests with the client even if the bank repossesses the home. We are talking about the difference between the assessment amount of the apartment (house) and the amount under the mortgage agreement. At the same time, the amount of debt stops growing, and fines stop accruing.

Visually, the situation may look like this: citizen Mikhail P. has a debt of 1,500,000 rubles. The bank took away his apartment for mortgage debts, put it on its balance sheet and valued it at 1,200,000 rubles. The difference in value between the amounts is not in favor of the debtor, therefore, he will have to pay the balance of the debt in the amount of 300,000 rubles.

IMPORTANT! Eviction due to mortgage debt is permitted by law only on the basis of a court decision.

Is it possible to lift the arrest?

Paragraph 45 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 50 states that funds in accounts and newly received funds are subject to arrest. The amounts are used to pay off obligations to the plaintiff. The procedure is carried out until the debt is completely closed. Article 70 of Federal Law No. 229 states that bailiffs are obliged to foreclose on funds located in such accounts. For this purpose, decisions are made. As a result, the bank is obliged to carry out the order of the representatives of the FSSP and transfer the amount to the treasury account of the unit.

However, not all courts agree with such rules. The Orenburg Regional Court considered the appeal in case No. 33 AD 2002-2012. As a result, it was established that the account created for the mortgage is opened on the basis of a loan agreement and is not used for making classical calculations. Therefore, it does not correspond to the characteristics of a current account (clause 2 of Article 11 of the Tax Code of the Russian Federation) and is a target account. As a result, the provisions of Article 81 of Federal Law No. 229 cannot be applied.

The court concluded that the seizure of the account violates the rights of the mortgage borrower. Therefore, the bailiff’s decision was considered illegal and was canceled. However, there is no uniform practice on the above issue.

Attention

Removing a lien from a mortgage account is still permissible. The action can be performed after receiving a deferment or installment plan for the debt, carried out on the basis of a court decision or after the closure of obligations. However, lifting the arrest does not relieve the person from the need to provide funds to repay the debt. It is recommended to make the calculation as soon as possible.

How to do the right thing

Encumbrance on housing is often an unpleasant surprise for potential buyers, since the owner, who does not want to pay, usually knows that restrictions are imposed on his property. If this turns out to be the case and the buyer does not agree with such a transaction, he should contact Rosreestr with an application to suspend the registration procedure. Of course, this is done in the case when the contract with the seller is signed and papers have been submitted to re-register ownership rights. You need to act quickly, since today the registration procedure takes a maximum of three days.

The buyer may demand not only a complete cancellation of the procedure, but also its suspension for a period of no more than three months (ninety days). During this time, the issue can be resolved and the re-registration of property rights can continue when everything is resolved.

If we are talking about an apartment that has been seized for the debts of one of the spouses, despite the fact that the property is jointly acquired, the optimal solution is for the second spouse to allocate his share of this property separately. This is done not only during divorce, but also in marriage. By this action, part of the housing will be preserved in the event that payment of debts is not expected and the property may be taken away.

How to remove a seizure from a mortgage account imposed by bailiffs?

A citizen can try to remove restrictions from the mortgage account imposed by bailiffs. To do this, you must proceed according to the following scheme:

1. Contact the bank and find out the reason for the restrictions. If a person finds out that the order of the bailiffs is to blame, he can additionally find out which branch of the FSSP to contact.
2. Pay off your obligations in full. If there is no possibility of providing funds, you can ask for a deferment or installment plan. The right to receive it is provided for in Article 203 of the Code of Civil Procedure of the Russian Federation. To use the benefit you will need to fill out an application. The document form is not fixed. The paper is drawn up in accordance with the classical rules of office work. It will be necessary to reflect information about the participants in the procedure, information about the case in which forced penalties were imposed, and also record a request for an installment plan or deferment.
3. Contact the bailiff service. You can visit the organization in person, send documents by mail or transfer them through a third party. In the latter case, it is necessary to issue a power of attorney.
4. Wait for a decision to be made. If it is positive, the seizure will be removed from the mortgage account.

Additional information
If a citizen believes that sanctions were applied in violation of current legislation, you can file a complaint. It is issued in the name of the bailiff who heads the local branch of the FSSP. The text of the document must contain references to legal norms that violate the actions of the bailiff. Additionally, it is allowed to prepare a statement of claim and submit it to court. There is real judicial practice to remove restrictions from a mortgage account and recognize the actions of bailiffs as illegal. In this case, the person will be able to obtain the return of all written-off funds that were transferred to repay the housing loan.

What documents must the bailiff present when they seize an apartment for debts?

When foreclosure of real estate, you are required to provide the appropriate court decision. Also, the bailiff will need to draw up an act with a mandatory inventory of the property. This document is drawn up in the presence of witnesses. It should reflect the following information:

• information about all persons participating in this event;
• name of property and/or rights to it;
• preliminary assessment of the value of the seized object;
• type and duration of restrictions on the use of this property;
• note of seizure;
• the judicial authority to which the property will be transferred for temporary storage;
• a note explaining to the person who will receive the object the rights, obligations and a warning about liability for wasting someone else’s property;
• comments from eyewitnesses present at the arrest.

After the act is completely filled out, it is signed by all citizens present at the seizure.
Read What is loan debt restructuring - what does it mean in simple words and how it works